Last week I told the story — as told through this TTAB opinion — of Carl Vennitti’s seven-year tug of war with Nestlé, maker of Hot Pockets food-type product and owner of the HOT POCKETS trademark. The battle was over Carl’s attempt to use and register the trademark SANDWICH POCKETS. I promised that part 2 would consist of Carl telling his own story, because I believe, as a blogger, in the Freedom Principle.

What is the Freedom Principle?

I, as a blogger, have an obligation to use material submitted to me for free if there’s any rationale way it fits with the editorial and I can thereby get a post out of it.

There is no greater freedom than this.

There’s an extra surprise, because this guest submission comes with its own introduction by another trademark blogger, Benjamin Ashurov, who writes a blog called Trademark Bully. I have added some explanatory links to his introduction to the SANDWICH POCKETS saga, regarding which, you may have noticed if you read this and the prior post carefully, I have actually offered no opinion. I also take no responsibility for any factual claim in this post or this introduction and in fact welcome any opportunity to correct or clarify the record if appropriate. I defer, instead, to the Freedom Principle along with a good-faith belief that the narratives published here are materially correct. I have copy-edited the introduction and Carl’s magnum opus, but very lightly; readers familiar with this blog will see that both guest contributors here are speaking in their own voices.

Cue music, please — first, Benjamin:

After seven years of agonizing litigation, this forum shall allow us to present the over-reaching conducted by one of the world’s largest food companies, foreign owned, and the havoc that they can wreak on a family owned American business, what the results are, and how it affects individual family members who toil at manual labor.

Not everyone thinks that he makes an outstanding product. According to a claim by Nestlé Prepared Foods, Hand Held Products’ division in Colorado, he made an inferior product! At the onset of the attack he was quite surprised at that published statement, because in fact he used to use a lot of Nestlé products in his (he doesn’t use any more). It’s a ridiculous scenario, so you will have to use your own best judgment about the quality issue.

The whole purpose of the “quality” claim, of course, was to suggest that Carl’s use of a trademark claimed by Nestlé was harming its reputation. Yet just recently one of Nestlé’s Hot Pockets employees was arrested — for war crimes in Bosnia. Inferior products? Higher standards?

Most importantly for purposes of this forum, Nestlé also claims to have exclusive right to the word POCKET in a trademark. Left un-addressed, the consuming public may have to quit calling those extra pieces of fabric on clothes “pockets,” or Nestlé may accuse them of infringement, too!

Regardless of these claims, Carl, his family and his company are still supposed to call their food products “pocket sandwiches” by the USDA FSIS definition, and by the former definition in the USPTO’s “Trademark ID Manual.” Today he can.

Here, now, Carl’s story in his own words. You may want to stick something in the microwave — it’s a long one!

I owe this essay to everyone who believed in creating a dream, and helped build his or her own company into the company we almost were. The following is truthful and factual, which makes it hard to dispute unless, alas, you possess, and are willing to spend, untold amounts of good money to destroy dreams and hard labor, credit, business, integrity and family, such as Nestlé did to me and my family.

Prior to July of 2003, V&V Enterprises, Inc., did business as Mauro Brand Products and been marketing and selling “pocket sandwiches” since coming under inspection by the USDA in 1991. Before coming under Federal Inspection with the USDA, we had marketed and sold our products as “pizza turnovers” since 1981. It was quite a traumatic change at that point, because the USDA did not have a category in which to classify our product. Their category was “Multi-Component Products”, and “Pocket Sandwiches” came under that category. We adjusted our customers to the name changes with quite a bit of explanation, but because we made such a well-accepted product, our customer base soon made the adjustment acceptable. We had slowly evolved into a food company which had enjoyed distribution of its’ Pocket Sandwiches in school food service from New York City to Los Angeles. Our years of financial struggle were over. Our commitment to children and to the disabled Americans, which we employed, and still do, was reaching the highest levels of fruition. Our commitment to those less fortunate was driving our goals. St. Jude Children’s Research Hospital became our ‘friend in need’, along with the ‘Make a Wish’ Foundation. Above and beyond our monetary contributions, Micaela, my wife of 33 years, formed a ‘club’ for making rosaries, and taking any and all donations to our beloved charities, so that more people would feel compelled to help those poor children with nowhere else to turn.

We started our company in a back room at Sorrento’s on Parkman Rd. in Warren, Ohio. Keeping both businesses under one roof was proving to be very difficult so we built a new facility right up the street so the business could grow and flourish. After a few years, our small building was virtually bursting at the seams and we needed to expand the ‘brick and mortar’ to allow for continued growth. With a ‘lease to own’ agreement, we completely renovated a former bowling alley to become a state of the art, USDA inspected food facility, which was eight times our former size, with extra acreage for future expansion. With bona fide contracts in hand, we ordered new manufacturing lines, which would easily triple our daily, single shift output. Everybody was our friend.

With multiple years of successive double-digit growth and profits, our internal team, and acquired minority business associates, felt that the timing was right for a Reverse Merger into an existing Shell; a ‘public offering’ of the company. Lawyers and professionals were hired to properly formulate a new company, which would embody all that we were and all that we could be, and the process was set into motion. As we were reaching the finish line of dreams that can come true, we received a simple letter from Nestle USA; Nestle Prepared Foods Group; Hand Held Products Division, Englewood, Colorado.

This multi billion-dollar company was attacking our less than 1.4 million dollar company. We were making an impact. Making a good product, hard work and dedication had gotten the attention of the world’s largest food company. We thought it was funny. Still being somewhat naive, we didn’t notice that no one else was laughing.

Our team of underwriters, Pacific Coast Capital and Empire Group, advised that the project could not move forward until we secured a successful outcome on our behalf in the threatened litigation. Contracts were put on hold. Longtime customers dropped us because they didn’t believe we could withstand a legal battle with a company of that magnitude. Since we, as a family, used every penny we had at our disposal, we had only financed $1.6 million of the $2.4 million for the move and expansion. Our local bank, which had financed the initial capital requirements for our project to move forward was unsympathetic to our unforeseen plight. An anecdote from my deceased father: The only way you can pick up the phone and talk to a bank president and he knows you by voice is one of two ways; you are depositing a lot of money and they want to keep it coming in or you owe too much money and they are worried you can’t pay it back. I’ve been there, on both sides of this issue.

And all of this, for what? Section 25 of “Defendants’ Unlawful Activities” states “investigation revealed Defendants’ apparent intent to expand substantially the scope of their operations, … beyond their previously limited market niche. ” How’s that for securing a monopoly and extinguishing a fire of hope?

When we made the right decision to fight this bullying by a large, foreign owned company, they quickly initiated settlement proceedings, which they thought was a benevolent action on their part. We had been financially devastated, in great debt, and struggling to keep utilities and taxes paid.

Conventional wisdom would say to take the small amount of money they offered and run. They had said that even if we won the case, there would be no money to offset our costs, business losses or personal grief. Take the pittance they offered, lose the word ‘pocket’ and change who we are. We were not going to do that willingly. The operative words were ‘even if we won’. There was the very slightest bit of concern in their demeanor. Knowing full well that based on the issues and accusations in their suit, an actual court case provided only marginal opportunity for success for them, they hired a high profile outside counsel to massage the accusations. Time and again the course of attack changed to eventually find a workable situation in which to maintain dominance in their stance. Just to show how kind-hearted they were, additional settlement offers were made from time to time as well. My question has always been: if we were wrong, and they thought we were wrong, why would they want to pay us? Their initial Cease and Desist letter dated June 18, 2004, stated that they wanted to expedite a settlement with us.

The ‘Colorado Litigation’ (U.S. District Court for the District of Colorado, Civil Action 04-MK-2533) entailed 9 trips to Denver for Hearings, Conferences and Trial. In continuing their path of ‘bullying’ tactics, they scheduled another court appearance for me on December 22, 2006, during the height of the Denver ‘Blizzard of 2006’, only to cancel due to weather, the day before. Holidays, family obligations and travel requirements have no input when it comes to devising ways to intimidate a person or company.

Check out Clouthub – GetClouthub.com/Ron

The Title, the Blog and the Blogger

The question of whether consumers are likely to be confused is the signal inquiry that determines if a trademark infringement claim is valid. I write here about trademark law, copyright law, brands, free speech (mostly as it relates to the Internet) and legal issues related to blogging. That may sound like a lot, but it's just a blog.

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THIS BLOG IS ONLY A BLOG, NOT LEGAL ADVICE. IT IS IN PART AN ADVERTISEMENT FOR LEGAL SERVICES BY RONALD D. COLEMAN, AN ATTORNEY ADMITTED IN NEW YORK AND NEW JERSEY ONLY, BUT HE IS NOT YOUR LAWYER. YOU ARE NOT HIS CLIENT CLIENT. JUST WALK BESIDE HIM AND BE HIS FRIEND.